Implied licence

In Canadian Pacific Railway Company v The King ([1931] A.C. 414, PC) CPR had erected telegraph lines and poles on Government land next to a railway. This had largely been without any express licence but a licence was implied since the lines and poles had been present for many years and well-known to the Crown. In the case of some minor sections of line CPR had been given express licence to erect the lines and poles pending the exchange of formal agreements.

The implied licences were revocable but the notice period had to be long enough to allow the lines and poles to be removed and erected elsewhere. This was because CPR had obligations to third parties in respect of the system and because of the public interest in the existence of the system.

CPR failed to persuade the Privy Council that it had a permanent right to keep its system in place. It sought to invoke Plimmer v Mayor of Wellington and Ramsden v Dyson but failed since there had been neither active nor passive encouragement by the Crown that would encourage CPR to believe that it had or would obtain some permanent interest in the land. Nor was CPR mistaken as to its true legal position.


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